Wednesday, May 30, 2012

The outcome of disputes depends not only on substance and strategy but sometimes also on tactics and timelines. A couple of weeks ago, Judge Robert N. Scola of the United States District Court for the Southern District of Florida entered a case management order that was good news for Apple and HTC but bad news for Motorola. Judge Scola consolidated two Motorola v. Apple cases, including a more recent one in which Apple asserted six new counterclaim patents not only against Motorola but also against HTC. And he adopted the slow schedule that HTC had proposed.

Yesterday, Motorola filed a motion for reconsideration, telling the judge that it would suffer "manifest injustice" if its claims against Apple went to trial in 2014, about four years after Motorola's original complaint. Motorola explained that it brought its second Florida lawsuit against Apple (in January 2012) only because it wasn't allowed to amend its infringement contentions to target the iPhone 4S and the iCloud in the 2010 case. It said Apple just wanted to delay the case through "procedural gamesmanship" after it "lost on nearly every term during claim construction". And Motorola regrets that the case management order came down two days before Motorola's deadline to respond to a pleading by Apple. But Judge Scola denied the Google subsidiary's motion today, only a day after it was filed. He entered a "paperless order" that doesn't even explain the reasoning. Since the courts enjoy quite some discretion in how they manage their cases, I guess Motorola depended on the judge's receptiveness to its petition.

The term "manifest injustice" slightly exaggerated what happened to Motorola here, but it's fair to say that the judge adopted a combination of Apple's and HTC's proposals that was worse for Motorola's purposes than even Apple's own proposal -- and that's certainly unfortunate for the Google subsidiary. Motorola has a point where it refers to Apple's "procedural gamesmanship", but everyone plays those games and Apple has also come out on the losing end in some cases.

For example, in December 2011 the United States District Court for the District of Delaware stayed all of Apple's claims against HTC pending in that district. That sweeping order to stay was closer to the notion of "manifest injustice" than what just happened to Motorola in Florida. Even in that case, the disadvantaged party (Apple) has no one to blame but itself: HTC actually would have preferred at some point to litigate in California. In the Florida case, Motorola could have avoided all those complications by waiting with its new lawsuit until it had a 100% reliable trial date for its original claims. But it appears that Motorola thought a lawsuit targeting older iPhones than the 4S wasn't too useful on its own. Still, if Motorola had successfully enforced some of its non-standard-essential patents against older iPhones, it could have gone after newer products later. Motorola brought its new Florida lawsuit in January in the middle of a détente as far as new filings in the U.S. are concerned: neither party had filed a U.S. complaint against the other since the "Googlorola" merger announcement in August 2011.

Recently, HTC brought a motion to sever the claims it faces (as I mentioned in this recent post). Last week, Motorola declared itself in support of HTC's motion to sever. Apple filed its opposition brief yesterday, arguing that HTC's motion to sever is "disingenous" given that HTC itself argued in 2010 in favor of consolidating some Nokia v. Apple cases with some Apple v. HTC cases (which the federal courts didn't do; only the ITC did).

Under last year's patent reform (the America Invents Act), multi-defendant lawsuits are subject to certain requirements: there must be some common issues. In this regard, Apple points out that some of the accused technologies are Android apps that run on both companies' phones. For example, Apple shows this picture of an HTC Rezound and a Motorola DROID RAZR phone with Google Maps, and the screen content certainly appears identical:

Apple also points to both companies' membership in the Open Handset Alliance and their copyright notices in the Android source code as well as compiler directives that mention those manufacturers:

One argument that's also interesting is that Apple's infringement allegations aren't limited to the devices those manufacturers distribute but also include those defendants' own internal use and testing of stock Android (i.e., Android in the very form in which it's published on the Internet by Google):

"Moreover, Apple's complaint specifically pleads infringement of each patent in suit by HTC and Motorola based on each company's use of the identical unmodified Android source code -- for instance, during development and testing -- an allegation that HTC simply ignores."

Apple has strong arguments against HTC's motion to sever and it presented them in the most well-crafted pleading of this particular kind that I've seen to date. HTC has been very lucky in a couple of case management contexts, but it won't always be as lucky as it was in Delaware and at the ITC.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.